Ali v. Calumet Medical Center Inc et al

Filing 25

ORDER signed by Chief Judge William C Griesbach on 11/14/13 granting 16 Motion to Dismiss for Failure to State a Claim. Affinity is dismissed from the lawsuit without prejudice. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ZULFIQAR ALI, M.D.,
Plaintiff,
v.

Case No. 13-C-0766

CALUMET MEDICAL CENTER, INC.,
AFFINITY HEALTH SYSTEM and
NETWORK HEALTH SYSTEM d/b/a
AFFINITY MEDICAL GROUP,
Defendants.

ORDER GRANTING [16] DEFENDANT’S SECOND MOTION TO DISMISS

The Plaintiff, Dr. Zulfiqar Ali, filed this action against Defendants after he was terminated from
his employment by Network Health System, Inc., d/b/a Affinity Medical Group (AMG). Plaintiff
alleges that his termination was racially motivated, and he asserts claims for intentional discrimination
under 42 U.S.C. § 1981 and breach of his physician employment agreement. On September 23, 2013,
the court issued an order dismissing Plaintiff’s claim for retaliation under 42 U.S.C. § 1981 and his
state law claims for defamation and invasion of privacy for failure to state a claim. (ECF No. 13.) The
court also dismissed Affinity Health System (“Affinity”) from the lawsuit because Plaintiff failed to
plead particular facts establishing a cause of action against Affinity and did not attempt to rebut
Defendants’ assertion that Affinity is not a proper party to the lawsuit. (Id. at 10.) Plaintiff amended
his complaint on October 4, 2013, to include a claim for respondeat superior against Affinity. (Am.
Compl., ¶¶ 69-70, ECF No. 15.) Plaintiff alleges that because Affinity owns AMG and Calumet
Medical Center (CMC), it is liable for the wrongful acts committed by employees of these entities.
(Id.)

Defendants brought this motion to dismiss Plaintiff’s claim for respondeat superior for failure
to state a claim under Fed. R. Civ. P. 12(b)(6). (ECF No. 15.) Defendants contend that to establish
a claim under Section 1981, Plaintiff must allege that Affinity had an employment relationship with
Plaintiff or was involved in his termination. See Nieman v. Nationwide Mut. Ins. Co., 706 F. Supp. 2d
897, 909-10 (C.D. Ill. 2010). Plaintiff does not allege that Affinity employed him and concedes that
he “has no evidence today that Affinity was responsible for the termination of Dr. Ali or that Affinity
directed CMC and/or AMG to terminate Dr. Ali.” (Pl’s Resp. Br. at 2, ECF No. 24.) Plaintiff
therefore fails to state a claim against Affinity under Section 1981 or breach of contract, and his claim
for respondeat superior must be dismissed. Affinity will again be dismissed from the lawsuit without
prejudice. If Plaintiff later discovers facts that provide sufficient ground to state a claim against
Affinity, he may seek leave of the court to amend the complaint.
SO ORDERED this 14th

day of November, 2013.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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